In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 23-2330 

LKQ CORPORATION, 

Plaintiff/Counter-Defendant-Appellant, 

v.

ROBERT RUTLEDGE, 

Defendant/Counter-Claimant-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:21-cv-03022 — Thomas M. Durkin, Judge. 

____________________ 

ARGUED FEBRUARY 14, 2024 — DECIDED MARCH 15, 2024 

____________________ 

Before SCUDDER, ST. EVE, and LEE, Circuit Judges. 

SCUDDER, Circuit Judge. This case presents a complicated 

and important issue of Delaware law: whether, and in what 

circumstances, contractual provisions requiring a corporation’s former employees to forfeit a monetary benefit upon 

leaving the firm and joining a competitor—so-called forfeiture-for-competition provisions—are subject to review for 

reasonableness. Robert Rutledge agreed to such a provision 

as part of his participation in LKQ Corporation’s restricted 
2 No. 23-2330 

stock program. When he resigned from the company and 

went to work for a competitor, LKQ sought to recover from 

Rutledge the proceeds he realized from multiple stock sales 

over many years. 

Earlier this year the Delaware Supreme Court held in Cantor Fitzgerald, L.P. v. Ainslie, No. 162, 2023, 2024 WL 315193 

(Del. Jan. 29, 2024) that forfeiture-for-competition provisions 

in limited partnership agreements are not subject to a reasonableness review. What we cannot discern with confidence is 

whether the holding in Cantor Fitzgerald applies outside the 

context of highly sophisticated parties, including where the 

mandated forfeiture is expansive in scope. Because of the importance of stability and predictability in Delaware corporate 

law and the common use of restrictive stock unit agreements 

governed by Delaware law, we certify the questions set forth 

in this opinion to the Delaware Supreme Court. We otherwise 

affirm the district court’s entry of judgment in Rutledge’s 

favor. 

I 

A 

For more than a decade, Robert Rutledge worked as a 

Plant Manager at LKQ Corporation, a national supplier of salvage and recycled automobile parts. Rutledge oversaw the 

company’s Lake City, Florida facility. LKQ designated 

Rutledge as a “key person” eligible to receive restricted stock 

unit awards—a designation reserved for less than two percent 

of its workforce. Key persons can decline stock awards without consequence. LKQ conditions them solely on the recipient 

employee executing and abiding by a Restricted Stock Unit 

(RSU) Agreement. Employees must also separately execute 
No. 23-2330 3

Confidentiality, Non-Competition, and Non-Solicitation 

Agreements, which the parties collectively call Restrictive 

Covenant Agreements. 

Each year between 2013 and 2020, LKQ offered Rutledge 

a restricted stock unit award. In connection with accepting 

those awards, he executed RSU Agreements with LKQ. From 

2011 to 2020, Rutledge also entered into separate Restrictive 

Covenant Agreements. In return, Rutledge received an annual allotment of LKQ stock distributed on a vesting schedule. He later sold all of his vested stock—the value of which 

the parties dispute but is in the hundreds of thousands of dollars—on the open market. 

Among other terms, the RSU and Restrictive Covenant 

Agreements prohibited Rutledge from working for a competitor within nine months of leaving LKQ. Breach risked injunctive relief, or in the case of the RSU Agreements, forfeiting all 

proceeds from the stock awards. In April 2021, five days after 

resigning from LKQ, Rutledge went to work for Fenix Parts, 

LKQ’s direct competitor. 

B 

Invoking diversity jurisdiction, LKQ sued Rutledge in federal court in Chicago, alleging breach of the RSU Agreements, 

breach of the Restrictive Covenant Agreements, and unjust 

enrichment. LKQ sought injunctive relief under the Restrictive Covenant Agreements and the claw back of all proceeds 

realized from each of Rutledge’s sales of stock. 

The district court made short work of LKQ’s unjust enrichment claim. It explained that a claim for unjust enrichment—

even pleaded in the alternative—is unavailable under Illinois 

law where the claim’s challenged conduct is the subject of an 
4 No. 23-2330 

express contract. Since LKQ pleaded that the RSU Agreements governed the parties’ relationship, incorporating those 

allegations in its unjust enrichment claim, it could not also 

seek recovery from Rutledge on a theory of unjust enrichment. 

Following discovery, the parties filed cross motions for 

summary judgment, focusing on the enforceability of both the 

RSU and Restrictive Covenant Agreements. The district court 

devoted the bulk of its attention to the forfeiture-for-competition provision in each RSU Agreement. Relying on the Delaware Chancery Court’s opinion in Ainslie v. Cantor Fitzgerald, 

L.P., No. 9436, 2023 WL 106924 (Del. Ch. Jan. 4, 2023), the district court concluded that Delaware law requires analyzing a 

forfeiture-for-competition provision for reasonableness. From 

there, the district court determined that the RSU Agreements 

(under Delaware law) and Restrictive Covenant Agreements 

(under Illinois law) imposed unreasonable restraints on trade, 

rendering both unenforceable. In the end, then, the district 

court entered judgment for Rutledge on LKQ’s claims. 

LKQ now appeals, challenging both the district court’s 

dismissal of the unjust enrichment claim and entry of summary judgment for Rutledge. 

II 

While the most substantial issue on appeal concerns the 

forfeiture-for-competition provision within the RSU Agreements, we can resolve the other issues without much difficulty. We start with the district court’s dismissal of LKQ’s 

claim for unjust enrichment. We review the dismissal against 

a clean slate, construing all facts and reasonable inferences in 

LKQ’s favor. See Gociman v. Loyola Univ. of Chi., 41 F.4th 873, 
No. 23-2330 5

881 (7th Cir. 2022). The parties agree that Illinois law governs 

this claim. See McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 

684 (7th Cir. 2014). 

LKQ’s unjust enrichment claim fails because it roots itself 

in the contention that Rutledge breached an express contract—the RSU Agreements. As we have long recognized, 

“[w]hen two parties’ relationship is governed by contract, 

they may not bring a claim of unjust enrichment unless the 

claim falls outside the contract.” Util. Audit, Inc. v. Horace 

Mann Serv. Corp., 383 F.3d 683, 688–89 (7th Cir. 2004) (applying Illinois law). Indeed, where, as here, “the existence of a 

contract between the parties is undisputed, an unjust enrichment claim will seldom survive a motion to dismiss.” Gociman, 41 F.4th at 887; see also Karimi v. 410 N. Wabash Venture, 

LLC, 952 N.E.2d 1278, 1284–85 (Ill. App. Ct. 2011) (“If the complaint expressly alleges a contract, the count alleging unjust 

enrichment is properly dismissed.”). 

LKQ does not suggest that its claim falls outside the RSU 

Agreements. To the contrary, it maintains that it properly and 

sufficiently pleaded unjust enrichment as an alternative theory of recovery. But “a party may not incorporate by reference 

allegations of the existence of a contract between the parties 

in the unjust enrichment count.” Gociman, 41 F.4th at 887. LKQ 

did just that: it incorporated its allegations about the forfeiture-for-competition provision, including Rutledge’s alleged 

“conduct ... in breach of the RSU Agreements” in its claim for 

unjust enrichment. “[T]his pleading error prevents [any] unjust enrichment claim from going forward.” Id. 
6 No. 23-2330 

III 

A 

We turn next to the claim that Rutledge breached the Restrictive Covenant Agreements by immediately going to work 

for a competitor, Fenix, upon resigning from LKQ. 

Each Restrictive Covenant Agreement prohibited 

Rutledge from “directly or indirectly” “be[ing] employed 

by ... any business that would be competitive with any business conducted by [LKQ] ... anywhere within a 75 mile radius of any [LKQ] facility ... at which [Rutledge] worked” for 

nine months following the termination of his employment. 

For Rutledge, this restriction applied to a 75-mile radius of 

LKQ’s Lake City, Florida facility. 

The parties agree that the agreements’ non-competition 

provision is reviewed for reasonableness. Pursuant to the Restrictive Covenant Agreements’ choice-of-law provision, we 

conduct that review under Illinois law. “[B]ecause Illinois 

courts abhor restraints on trade, restrictive covenants are 

carefully scrutinized.” Liautaud v. Liautaud, 221 F.3d 981, 986 

(7th Cir. 2000) (quoting Prairie Eye Ctr., Ltd. v. Butler, 713 

N.E.2d 610, 613 (Ill. App. Ct. 1999)). But “it is equally established that a restrictive covenant will be upheld if it contains 

a reasonable restraint and the agreement is supported by consideration.” Reliable Fire Equip. Co. v. Arredondo, 965 N.E.2d 

393, 396 (Ill. 2011). 

The Illinois Supreme Court has explained that a restrictive 

covenant is reasonable “only if the covenant: (1) is no greater 

than is required for the protection of a legitimate business interest of the employer-promisee[,] (2) does not impose undue 

hardship on the employee-promisor, and (3) is not injurious 
No. 23-2330 7

to the public.” Id. Baked into this totality-of-the-circumstances 

review is “the propriety of the limitations in terms of their 

length in time, their territorial scope, and the activities that 

they restrict.” Cambridge Eng’g, Inc. v. Mercury Partners 90 BI, 

Inc., 879 N.E.2d 512, 522 (Ill. App. Ct. 2007); see also Reliable 

Fire, 965 N.E.2d at 396, 403. 

B 

Like the district court, we see the non-competition provision as overbroad and unreasonable. Most troublesome is the 

nine-month restriction barring Rutledge from working for 

any competitor in any capacity. Illinois law disfavors “blanket 

bar[s] on all activities for competitors.” Cambridge Eng’g, 879 

N.E.2d at 526; see also AssuredPartners, Inc. v. Schmitt, 44 

N.E.3d 463, 443 (Ill. App. Ct. 2015) (holding a restrictive covenant prohibiting work “in any capacity” within professional 

liability insurance overbroad and unenforceable); Bus. Recs. 

Corp. v. Lueth, 981 F.2d 957, 962 (7th Cir. 1992) (recognizing 

that Illinois courts “frown upon an across-the-board limitation on [an employee’s] right to ply his trade”). “Restrictions 

on activities,” the Illinois courts have explained, “should be 

narrowly tailored to protect only against activities that 

threaten the employer’s interest.” Cambridge Eng’g, 879 

N.E.2d at 526 (citation and internal quotation marks omitted). 

An employment bar is especially problematic where, as here, 

it forecloses work within an entire industry or market segment. See id. Put another way, Rutledge could switch occupations, working for Fenix in a noncompetitive capacity without 

harm to LKQ’s interests, and still violate the provision. We 

have little difficulty concluding that “[s]uch blatant overbreadth goes far beyond the standard for acceptable activity 

restrictions.” Id.
8 No. 23-2330 

But that is not our only concern. The agreements’ geographic restriction—extending to a 75-mile radius from the 

Lake City facility—also gives us pause. When it comes to geographic limitations within covenants not to compete, “courts 

generally look to whether the restricted area is coextensive 

with the area in which the employer is doing business.” Lawrence & Allen, Inc. v. Cambridge Hum. Res. Grp., Inc., 685 N.E.2d 

434, 442 (Ill. App. Ct. 1997). Large radiuses might be justified 

by evidence that the entire area aligns with the employer’s 

competitive market. See, e.g., Midwest Television, Inc. v. Oloffson, 699 N.E.2d 230, 235 (Ill. App. Ct. 1998) (holding a 100-

mile non-competition provision reasonable where radio station presented evidence that it had a sixty-to-ninety-mile 

broadcast range); Shorr Paper Prods, Inc. v. Frary, 392 N.E.2d 

1148, 1155 (Ill. App. Ct. 1979) (highlighting evidence that 90% 

of the employer’s customers were located within a 100-mile 

geographic restriction supported non-compete’s reasonableness). While LKQ insists that the Lake City facility’s market is 

coextensive with the provision’s 75-mile radius, the assertion 

comes without evidentiary support. 

By any measure, a 75-mile radius is large. It covers a large 

swath of the upper third of Florida and extends into Georgia. 

Rutledge could not work outside of that range without undertaking a commute (each way) of over an hour. Remember, too, 

that LKQ believes Rutledge breached the provision not by 

working at a nearby Fenix facility, but instead by working out 

of his Lake City, Florida home for facilities in Texas, New Jersey, Pennsylvania, Massachusetts, North Carolina, and other 

locations within Florida—all hundreds of miles from his 

home office. 
No. 23-2330 9

Given the totality of these circumstances, we have little 

trouble concluding that the Restrictive Covenant Agreements’ non-competition provision is unreasonable. Perhaps 

anticipating this outcome, LKQ asks us to “blue pencil” the 

provision to comport with the law. We decline the invitation. 

Illinois courts “refuse to modify an unreasonable restrictive 

covenant ... where the degree of unreasonableness renders it 

unfair.” Eichmann v. Nat’l Hosp. & Health Care Servs., Inc., 719 

N.E.2d 1141, 1149 (Ill. App. Ct. 1999). The district court 

heeded this instruction, and so do we, especially where the 

overbreadth of the employment restrictions would result in 

substantial modification of the terms of the Restrictive 

Covenant Agreement. 

We can stop there. Since the provision is unreasonable and 

unenforceable, we need not consider Rutledge’s contentions 

that the Restrictive Covenant Agreements lacked consideration in the first instance and more generally do not protect legitimate business interests. The district court was right to enter summary judgment for Rutledge on his claim challenging 

the Restrictive Covenant Agreements. 

IV 

That brings us to the most difficult aspect of this appeal—

the forfeiture provision within the Restricted Stock Unit 

Agreements. The parties agree that Delaware law governs. 

Two weeks before oral argument, the Delaware Supreme 

Court reversed the prior Chancery Court decision in Cantor 

Fitzgerald and held that forfeiture-for-competition provisions 

in limited partnership agreements are not subject to review 

for reasonableness. See Cantor Fitzgerald, 2024 WL 315193, at 

*13. Cantor Fitzgerald provides a new framework, one not 
10 No. 23-2330 

available to the district court but which controls our review of 

Rutledge’s challenge to the RSU Agreements. 

A 

A forfeiture-for-competition provision operates differently than a traditional restrictive covenant. The latter prohibits an employee from competing with their former employer. 

If breached, the employer can seek injunctive relief to enforce 

the employment restriction. But a forfeiture-for-competition 

provision imposes a different consequence if a former employee competes. Instead of prohibiting the competition outright, a forfeiture provision, as its name implies, works to 

forfeit or claw back a contingent benefit, thereby imposing a 

financial burden on the former employee. See Deming v. Nationwide Mut. Ins., 905 A.2d 623, 634 (Conn. 2006). 

Two views have emerged on how to treat these provisions. 

See 15 Corbin on Contracts § 80.25 (2023); 6 Williston on Contracts § 13:13 (4th ed. 2023). Some jurisdictions conclude that, 

regardless of form, forfeiture provisions function as restraints 

on trade and should be reviewed for reasonableness like restrictive covenants. See, e.g., Allegis Grp., Inc. v. Jordan, 951 

F.3d 203, 210 (4th Cir. 2020) (Maryland law); Deming, 905 A.2d 

at 638; Brockley v. Lozier Corp., 488 N.W.2d 556, 563 (Neb. 

1992); Cheney v. Automatic Sprinkler Corp. of Am., 385 N.E.2d 

961, 965 (Mass. 1979); Harris v. Bolin, 247 N.W.2d 600, 602 

(Minn. 1976); Almers v. S.C. Nat’l Bank of Charleston, 217 S.E.2d 

135, 138–39 (S.C. 1975). They reason that these provisions, like 

restrictive covenants, operate to deter competition, something 

that public policy disfavors. Deming, 905 A.2d at 637–38. 

Other jurisdictions are more inclined to embrace an “employee choice” doctrine, which enforces some forfeiture-for-
No. 23-2330 11

competition provisions under more traditional principles of 

contract law without inquiry into their reasonableness. See, 

e.g., Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 254 (2d Cir. 

2002) (New York law); Rochester Corp. v. Rochester, 450 F.2d 

118, 123–24 (4th Cir. 1971) (Virginia law); Schlumberger Tech. 

Corp. v. Blaker, 859 F.2d 512, 517 (7th Cir. 1988) (Indiana law);

Trumble v. Farm Bureau Mut. Ins. Co. of Idaho, 456 P.3d 201, 212 

(Idaho 2019) (declining to apply reasonableness analysis in 

the context of a non-employment contract); Swift v. Shop Rite 

Food Stores, Inc., 489 P.2d 881, 883 (N.M. 1971); Van Pelt v. 

Berefco, 208 N.E.2d 858, 865 (Ill. 1965) (Massachusetts law). 

This view, long considered the majority approach, Cheney, 385 

N.E.2d at 964, emphasizes that forfeiture provisions “leave 

the ex-employee free to make a living as he chooses.” Schlumberger, 859 F.2d at 516. Applying freedom of contract principles, these courts explain that the affected employee calculated the cost of choosing to join a competitor and, as a result, 

should be held to that choice. See id.; Lucente, 310 F.3d at 254. 

The Delaware Supreme Court recently grappled with 

these competing views in Cantor Fitzgerald, 2024 WL 315193. 

The dispute there arose in circumstances different than those 

here, and the question before us is whether those differences 

matter. 

Cantor Fitzgerald is a global financial services firm that 

operates under a limited partnership agreement. See id. at *2. 

“[T]wo inter-related mechanisms” in Cantor Fitzgerald’s limited partnership agreement—one a restrictive covenant and 

the second a forfeiture-for-competition provision—“discourage former partners from competing.” Id. When six partners 

voluntarily left Cantor Fitzgerald and joined a competitor 

firm, they called the enforceability of both mechanisms into 
12 No. 23-2330 

question. They did so when seeking to enforce Cantor Fitzgerald’s obligation to pay distributions of their capital accounts—capital contributions and profit share—covering a 

four-year period. See id. at *2–4. 

Under the forfeiture-for-competition provision, a partner 

who “directly competes with the business of the partnership” 

forfeits unpaid capital account distributions. Id. at *3–4. “So, 

for example, a partner who refrain[ed] from [c]ompetitive 

[a]ctivity for two years w[ould] receive distributions during 

that period, but, upon commencement of competition in the 

third year forfeits distributions thereafter through the fourth 

year.” Id. at *4. The forfeiture provision operated “regardless 

of the reason a partner cease[d] to be a partner.” Id. at *3. The 

other mechanism, a restrictive covenant, prohibited the same 

competitive activity for two years and entitled Cantor Fitzgerald to withhold distributions and seek injunctive relief. Id. at 

*2–3. 

Cantor Fitzgerald invoked both mechanisms to withhold 

capital account payments—ranging in value from just under 

$100,000 to over $5 million—for the six former partners who 

went to work for a competitor. See id. at *4–5. The former partners sued, contending that the mechanisms were unenforceable restraints on trade. Id. at *5. They prevailed on this rationale in Delaware Chancery Court. 

On appeal, the Delaware Supreme Court focused review 

on the enforceability of the forfeiture-for-competition provision. Concluding that the provision was not a restraint on 

trade, it held that “[w]hen sophisticated parties agree in a limited partnership agreement that a partner, who voluntarily 

withdraws from, and then competes with, the partnership, 

will forfeit contingent post-withdrawal financial benefits, 
No. 23-2330 13

public-policy considerations weigh in favor of enforcing that 

agreement.” Id. at *13. 

The court rejected the Chancery’s view of the forfeiture 

provision as analogous to liquidated damages and emphasized the context underpinning the dispute, including that the 

Delaware Revised Uniform Limited Partnership Act contains 

an explicit directive “to give maximum effect to the principle 

of freedom of contract.” Id. at *10 (quoting 6 Del. C. 

§ 17-1101(c)). The court also saw as “significant” the “distinction between a restrictive non-competition covenant that precludes a former employee from earning a living in his chosen 

field and an agreement that allows a former partner to compete but at the cost of relinquishing a contingent benefit”—a 

difference that weakened any interest in reviewing forfeiture 

provisions for reasonableness. Id. at *13. 

B 

Cantor Fitzgerald lends itself to two interpretations—one 

broad and another narrow. On one hand, the Delaware Supreme Court was characteristically careful. It grounded its 

holding in the facts before it, emphasizing the sophistication 

of the parties, type of agreement, and forfeiture of unpaid 

contingent benefits. Id. at *13. The court also underscored the 

freedom of contract policy considerations expressed by the 

Limited Partnership Act, which diverge from “the common 

law’s disfavor of forfeitures.” Id. In doing so, the Delaware 

Supreme Court acknowledged the possibility that “a publicpolicy interest or inequitable outcome could, under some circumstances, outweigh the interest in freedom of contract enshrined in [the Limited Partnership Act.]” Id.
14 No. 23-2330 

But other portions of the Delaware Supreme Court’s opinion suggest a broader application. The court distinguished 

generally between restrictive covenants and forfeiture-forcompetition provisions, observing that “[t]he policy interest 

that preponderates in [restrictive covenants] is diminished—

if it does not vanish—in [forfeiture-for-competition provisions].” Id. It also emphasized that “[t]he courts of [Delaware] 

hold freedom of contract in high—some might say, reverential—regard.” Id. at *1. And when discussing how jurisdictions approach forfeiture provisions, the Delaware Supreme 

Court disagreed with the Third Circuit’s prediction in Pollard 

v. Autotote, Ltd., 852 F.2d 67 (3d Cir. 1988), amended by 872 F.2d 

1131 (3d Cir. 1988), that Delaware would review a forfeiture 

provision in a general manager’s deferred compensation incentive plan for reasonableness. Cantor Fitzgerald, 2024 WL 

315193, at *11 n.102. These parts of the Delaware Supreme 

Court’s reasoning support a broader reading of Cantor 

Fitzgerald. 

Even if a broad reading is the better reading, we see meaningful differences between this case and Cantor Fitzgerald that 

the Delaware Supreme Court may view as important. Perhaps 

foremost, the strong policy considerations raised by the Limited Partnership Act are not present here. Rutledge did not 

agree to the forfeiture provision in a partnership agreement 

or other specialized contract. Rather, he signed an ordinary 

corporate contract as part of LKQ’s restricted stock program. 

Nor was Rutledge a partner or company executive represented by counsel. He worked his entire career at LKQ as a 

middle manager. The facts make it hard to see how the Limited Partnership Act’s directive to give maximum effect to 

freedom of contract applies here. 
No. 23-2330 15

The consequences of a breach also differ. In Cantor Fitzgerald, the breach excused the company from paying contingent 

distributions of a limited partner’s earned capital. Here, however, Rutledge’s alleged breach would forfeit the grant of 

stock or any proceeds from the sale of those shares. LKQ’s 

RSU Agreements contain no limit on how far back the forfeiture applied, notwithstanding how much time had passed 

since Rutledge executed each agreement. In application, that 

would allow LKQ to claw back stock proceeds long vested 

and sold. Indeed, LKQ seeks to clawback eight years of stock 

award proceeds, worth hundreds of thousands of dollars (at 

least $600,000), from a middle manager making a modest salary (about $109,000). 

Finally, a subset of the RSU Agreements also entitled LKQ 

to seek injunctive relief. Although LKQ never acted on this 

right, a hallmark of forfeiture provisions is that they are not 

enforceable through injunctive relief. Id. at *13. This, too, differs from the circumstance before the Delaware Supreme 

Court in Cantor Fitzgerald. 

C 

As a federal court sitting in diversity, our obligation is to 

“predict how the state’s highest court would answer the question presented.” Cage v. Harper, 42 F.4th 734, 739 (7th Cir. 

2022). But here we are unable to predict with confidence how 

broadly Delaware courts would apply Cantor Fitzgerald, leaving us to conclude that the most prudent course is to invite 

the opinion of the only body that can definitively construe 

Delaware law—the Delaware Supreme Court. 

Jurisdictions remain divided on how to treat forfeiture 

provisions, and the Delaware Supreme Court has only 
16 No. 23-2330 

recently weighed in. See Cantor Fitzgerald, 2024 WL 315193, at 

*1; Deming, 905 A.2d at 634–35 (collecting cases); Annot. 81 

A.L.R.2d 1066 (1962); Annot. 18 A.L.R.3d 1246 (1968). While 

Cantor Fitzgerald considered the public policy considerations 

in a limited partnership agreement, forfeiture provisions appear in a host of other contracts connected to stock, deferred 

compensation, and other incentive programs. The enforceability of those provisions, and whether reasonableness review 

applies, likely has far reaching impacts on corporations and 

their employees. Given the importance of stability, predictability, and uniformity in Delaware corporate law, see Stream 

TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 353–54 (Del. 

2022), we see the Delaware Supreme Court as best suited to 

provide guidance on how best to read Cantor Fitzgerald. 

Delaware law allows the certification of state law questions by federal courts of appeals directly to the Delaware Supreme Court, Del. Sup. Ct. R. 41(a)(ii), so we respectfully certify the following questions: 

(1) Whether Cantor Fitzgerald precludes reviewing forfeiture-for-competition provisions for 

reasonableness in circumstances outside the 

limited partnership context? 

(2) If Cantor Fitzgerald does not apply in all other 

circumstances, what factors inform its application? For example, does it matter what 

type of agreement the forfeiture provision 

appears in, how sophisticated the parties 

are, whether the parties retained counsel to 

review the provision, whether the forfeiture 

involves a contingent payment or claw back, 

how far backward a claw back reaches, 
No. 23-2330 17

whether the employee quit or was involuntarily terminated, or whether the provision 

also entitled the company to injunctive relief? 

We do not intend this formulation to limit the Delaware 

Supreme Court’s considerations, and we invite the court to 

refine these questions as it deems appropriate. 

In certifying these questions, we also recognize that the 

case will return to us for applying any legal guidance the Delaware Supreme Court chooses to provide to us and all other 

courts sure to grapple with how best to read Cantor 

Fitzgerald. 

V 

For these reasons, we certify these questions to the Delaware Supreme Court. We otherwise affirm the district court’s 

entry of judgment for Rutledge on the breach of the Restrictive Covenant Agreements and unjust enrichment claims. 

QUESTIONS CERTIFIED.